CH. 33. 4 East 34, 52, Rowcroft.- See M'Car- an insurance on it, at £40 a hhd., and it requested the deft. to The court, on these facts, decided that the deft. was not liable to pay any part of the freight; for he acted for E. Downing, to whom the tobacco was consigned. The deft. made no contract to pay the freight. The plt. should have sued the shippers; and the plt. might have kept the goods till his lien was satisfied. A freighter agreed to pay £192, disbursements at the foreign port, and freight the voyage; the ship was lost in returning. Held, he could not recover back the £192, part of the hire, or in fact freight, for by the special contract, the charter-party, the master was entitled to retain all paid him, though he did not earn his return freight from Marenham to Liverpool. 4 Maul. & Sel. 37, 47, De Silvale v. Kendall, cotton 22 per pound freight. § 9. Assumpsit, by an underwriter against the assured, for Thompson v. freight received after an abandonment, in one of the Russian cases in 1800, 1801, voyage from Portsmouth to Riga. The ship-owner first insured his ship with A, and his freight with B, and being notified of an embargo at Riga, abandoned the ship to the underwriters thereon, and the freight to the underwriters on that, and received from each a total loss first engaging on each policy to assign to the insurers respectively, his interest in the ship and freight, and to account accordingly. Afterwards the ship was liberated and earned her freight; this was received by the assured, the deft. Held, he was liable, for he had received the freight from the shippers of the goods, and had expressly promised to pay it over to the underwriters on freight, who by the abandonment and payment of the loss of freight, had become entitled to it; and that without deducting the expenses of provisions, and wages, &c. which before the abandoment were charges on the ship-owner, and after that on the underwriters on the ship, who stood in his place. And the plt., by the judge's order, filed in this case the following statement : "This action is brought by the plt. (who was an underwriter for the sum of £150 on the freight of the ship called the Theseus, insured on a voyage at and from Riga to Portsmouth, on which policy the plt. has paid a total loss, and the deft. has since received the freight insured,) to recover the sum of £150, with interest thereon, from the deft." The underwriters on the ship claimed this freight. This case was decided solely on the specific agreement between the plt. and deft. The policy on the freight was after that on the ship, but before she was abandoned. It was urged also on the deft's. part, that this detention by Russia was a capture, and not an embargo, therefore that it put an end to the contract for freight. CH. 32. Art. 2. § 10. Assumpsit. In this case the plt. contracted to carry 5 East 316, the deft., his family, and luggage, from Demerara to Flushing 324, Mulloy r. Barker, A. in Holland, they to have the exclusive use of the cabbin, for D. 1804. 2400 guilders; and within four days sail of Flushing the ship 1 D. & E. was captured and carried into England, as a prize, and libelled, 182-2 Burr. and the cargo condemned. The deft. and family were set at liberty, at Plymouth, and their luggage restored to them. The proceedings as to the vessel were pending. The court held, that however the question might be as to the plt's. right to recover passage money, on an implied assumpsit, pro ratâ itineris, if the ship were restored, yet, pending the process against her as prize, no such action could be maintained; for non constat, but that the ship might be condemned, and the freight be decreed to the captors. Passage money seemed to be viewed by the court as freight, "except for the purpose of lien." It this case it was observed that, by the common law, the plt. cannot recover on a contract not performed, or partly performed; but that by the marine law it was otherwise; therefore in Luke v. Lyde, where the contract was covenants in a charter-party, the same was not performed, but being partly performed the marine law allowed a recompense for that part, and the courts of law have allowed assumpsit to be engrafted upon that law, to recover such recompense for part performance in regard to freight, seamen's wages, &c. The benefit recovered for, makes part of the original contract, and this assampsit may be implied by the deft's. accepting what the plt. has done, in part performance, without requesting him to perform the residue, and thereby dispensing impliedly with his performing such residue, and without any fault or neglect of his. 1018. § 11. In this case the deft. bought of the consignee all the 6 East 622, tar on board a certain Swedish ship, under two bills of lading, Sodergren v. and by agreement between them, the consignee was to pay the Flight. freight. The deft. received from the master most of the tar, CH. 33. 7 East 24, 38, Sharp v. Gladstone. and the consignee failed, not having paid the master h's freight. And the court held, that he had a lien on the tar remaining in his possession, for the whole freight; and that a part in a boat tied to the ship, by his orders, was in his possession, though the boat was sent by the vendee; and that when the master delivered part of the goods, he only lessened his security, but retained his lien for his whole freight on whatever part remained in his hands; and he, in an action brought by agree ment, recovered the whole freight accordingly. § 12. The expenses paid by freight or not. Assumpsit for money had and received, by the underwriters on freight, against the assured, who received the freight after he had abandoned, in one of the Russia cases 1800 and 1801. The facts were, the deft., owner of a seeking ship, in the Russian trade, insured ship and freight, with different set of underwriters, on a voyage home from Petersburg to Liverpool. After part of the lading was on board, and the rest ready to be shipped, the ship and cargo were seized by the Russian government, and the crew sent into confinement; on which the owner, the deft., abandoned ship and freight to the respective underwriters, and received as for a total loss. After some months the ship and crew were liberated, and returned home with her cargo, and earned freight, which the owner received from the shippers of goods. It was agreed the plt., an underwriter on freight, and who had paid a total loss, was entitled to recover something. The freight, the deft. received subject to certain expenses, and the question was what expenses. The court decided, that the ship and freight were salvage to the different underwriters, after deducting the expenses, each set was liable to pay, each being in the place of its assured, as follows, to wit: The underwriters on freight having paid as for a total loss, were entitled to the benefit of salvage, "and the net salvage is that which remains of the subject matter, after payment of the expenses of saving it." First, the charges paid at Liverpool £901. 15s., 5d. on ship and cargo were not to be paid by either set of underwriters. Second, the insurance on the ship can be no charge on the freight. Nor, third, can the diminution of the value of the ship and tackle by wear and tear on the voyage home, be a charge on freight or ship. Fourth, the expense of putting the cargo on board at Petersburg, was clearly for the benefit of the underwriters on freight, so a charge on them, and to be deducted. Fifth, the expenses at Petersburg and Elsineur, as port charges, were to be apportioned on ship and freight. So, sixth, the wages and provisions of the master and crew £223. 6s. 11d. from the time they were liberated in Russia, till discharged in England, were to be so apportioned. So, seventh, their Suart. wages while detained in Russia, £270, were so to be appor- Сн. 33. tioned on the two sets of underwriters on ship and freight. Art. 2. 13. In this case a ship was chartered on a voyage from London to Dominico, and back to London, at a certain rate of 7 East 400, freight on the outward cargo, and after delivering it at Domin- Horncastle ico, the charterers were to provide her a full cargo homeward, at current freight. Held, that insurance by the owner of the ship on the freight at and from Dominico to London, attached while the ship lay at Dominico, delivering her outward cargo, and before any part of the home cargo was shipped, during which time she was captured by the French; the contract of affreightment being entire, and the risk on the policy having commenced. Hence the owner became entitled to his freight on the homeward cargo, though no part of it was shipped. § 14. When freight actually commences, as between ship- 2 East 684: owner and freighter, see case of Curling v. Long, post, Ch. 40, a. 16, that is, the ship's breaking ground. Richardson v 15. The plt. at Newcastle, shipped goods for London to 3 Bos. & P. B's order. Before they arrived, he failed, and refused to ac- 119, 128, cept them; they arrived at C's wharf, where B's goods usual- Goss. ly came. The plt. arrived to receive them himself, and held, he was liable to pay only freight and charges, and that C had no lien on them for a general balance B owed him for wharfage. Blakey v. Dixon & al. Declaration. In consideration the plt. had taken on board 2 Bos. & P. his ship the deft's goods to carry to A, the deft. promised to 321,323, pay the money due for freight and carriage of the same, on the delivery of the bill of lading; that it was delivered; by reason whereof the deft. became liable to pay a large sum, to wit, £20, for freight and carriage of said goods. Held bad, on special demurrer, as it did not appear any thing became due for freight on the delivery of the bill of lading. Causes assigned. 1st. Did not appear any thing became due on the delivery of the bill of lading. 2d. Did not appear the plt. carried the goods from London &c.; primâ facie no freight is due till the goods arrive and are delivered. § 16. Even an inchoate right to freight does not attach un- 1 Bos. & P. til the ship has broken ground. But see 13, where an excep- v. Long. 634, Curling tion &c. ish. 17. If a contract of freight and demurrage be entered New. R. 104, into by deed, the plt. cannot declare in debt generally, and Alty v. Par. give the deed in evidence. But he ought to declare on the deed. § 18. If A contract with B, to bring a parcel of corn from a certain foreign port; and on A's arrival there he finds the exportation of corn there prohibited; stays out his demurrage there, and returns in ballast; B is liable to pay freight, but not 3 Bos. & P. 295, n. Blight v. Page.Morgan v. N. America, Ins. Co of 4 Dall. 455. Сн. 3 Bos. & P. 291, 302, v.Hubbard. 10 Co. 106. 3 Bos. & P. 191.-4 Rob. demurrage, if A knew of the prohibition before he entered the port, though demurrage was allowed by the contract. This case is clear as to the demurrage, but quære as to the freight, -was only the opinion of one judge; the consignee is to get permission to land the cargo. 19. A British merchant chartered a Swedish ship on a voyage from London to Ponte del Gada, in the island of St. Touteng & al. Michael, for a cargo of fruit, and the charter-party contained the usual exception against the restraint of princes, and the ship was prevented reaching that port within the fruit season, by an embargo the British government laid on Swedish vessels. Held, the Swedish owner could not entitle himself to freight, by proceeding on the voyage, after the embargo was taken off, against the British merchant, who, after the embargo was taken off, notified the Swedish master the fruit season was 534.-1 Valin, past, and it would be useless to proceed on the voyage. The 626, a. 7. court seems to have gone on the ground the embargo was in the nature of hostility by the British government, and as such act, it threw the loss on the Swede, and said, if the embargo had been laid by a foreign government, the British merchant had been bound to furnish the cargo, though out of season, and so to pay the freight. Swede deemed a party to the fault of his government. Adm. R. 77. -10 East § 20. The plt., freighter, and deft., master of a ship of 400 10 East 530, 536, Atkin- tons, agreed, in writing, that she, being fitted for the voyage, son v. Ritchie. should proceed to St. Petersburg, and there load from the plt's. factor a full cargo of hemp and iron, and proceed to London, and deliver the same, on being paid freight &c. The master took in half a cargo and sailed on a general rumour of a hostile embargo on British vessels, laid about six weeks after. Held, he was liable in damages to the plt. for short delivery of cargo, though the master acted bona fide, and under a reasonable apprehension at the time. 12 Mass. R. 206, Cutts, kins. § 21. Valid assignment of freight before earned. Assumpadmr. v. Per- sit by the administrator of S. P. Abbot to recover freight. Abbot was master and owner of the ship Rebecca, and in London bound to Boston with goods consigned to a merchant there. The deft., Abbot, owing a merchant in London, drew a bill in his favour on the said consignee in Boston for the amount of the freight money. Abbot died before the bill came to the payee, and when afterwards presented it was paid by the drawee. Held, this was a valid assignment of the freight, and the drawee was not liable to the action of Abbot's administrator, though his estate was insolvent. The defence was, that when the bill was drawn, no freight was due, but it accrued on delivery of the goods, and Abbot's death in the mean time was a revocation. But held, Abbot's liability |